A
Division Bench of the Madras High Court by the impugned judgment held that the
respondent was entitled to hold office of trusteeship in SriLakshmiHayavadhanaPerumalTemple in Nanganallur, Saidaret Taluk as
hereditary trustee. The Commissioner of Hindu Religious and Charitable
Endowment and the Deputy Commissioner, the appellants herein question
correctness of the judgment.

Background
facts giving rise to the present appeal need to be noted in some detail.

Respondent-Sabha
filed an application under Section 63(b) of the Tamil Nadu Hindu Religious and
Charitable Endowment Act, 1959 (in short 'Act'), before the Deputy Commissioner
(appellant no.2 in the present appeal) for declaration that the Sabha is
hereditary trustee of the religious institution. The application was dismissed
by the Deputy Commissioner. Since the dismissal was upheld by the Commissioner
(the appellant no.1 herein) against the rejection of the application, the
respondent as plaintiff filed a statutory suit OS No.257/1981 before
Subordinate Judge, Chengleput. Present appellants as defendants took the stand
that the suit temple is a public temple constructed out of the collections
including collections from the members of the Sabha and the grant of funds from
the Government, that it is not for the benefit of Sabha members only but for
the benefit of the Hindu public at large, and thus the temple is one covered
under Section 6(20) of the Act.

The
Trial Court rejected the claim of the plaintiff by holding that it is not
entitled to be declared as hereditary trustee of the suit temple. At the same
time since the Sabha had initiated and taken all efforts to construct the
temple and manage it in the interest of general worshipping public, it would be
appropriate to have one or more of the representatives of the Sabha, in the
Board of Trustees as the authorities may deem fit.

Aggrieved
by that the plaintiff preferred an appeal (AS No. 240/84) which was also
dismissed by a learned Single Judge of the Madras High Court. The learned Judge
also highlighted the difference inherently inbuilt in the definition of 'hereditary
trustee' in Section 6(11) and 'trustee' in Section 6(22) of the Act. Letters
Patent Appeal was filed by the Sabha in L.P.A. No. 275/1995 which was allowed
and the judgment therein is the subject matter of challenge in the present
appeal. The Division Bench in the High Court was of the view that the founder
being the Sabha, the entire administration of the temple is vested in the Sabha
only consisting of its office bearers and they alone are entitled to administer
the temple and its properties.

Case
of the plaintiff in a nutshell is as follows:

The Sabha
itself was formulated for the purpose of constructing a new temple for the
benefit of the members of the said Sabha and the Sabha was registered under the
Tamil Nadu Societies Registration Act, 1975 (in short the 'Societies Act'). The
objects of the Sabha are to promote spiritual pursuits of Vashistadvaitha
philosophy as propounded by Sri Bhagavath Ramanuja and Sri Vedantha Desika, to
conduct discourses and arrange for lectures, to conduct classes in Vadas,
Upanishads, Divyaprabandas and Stothrapathas relating to Vashishtadvaitha faith
and philosophy, to work for cordial relationship and understanding among
persons having different religions and also among persons practising different
religions to make representations to Government and other leading religious
institutions in connection with any religious issue of public importance, to
secure representations on committees appointed by Government and other bodies
relating to the objects of the Sabha, to construct own and maintain temples and
other places of worship, Mantapams and the like to publish magazines, journals
and other literatures; to establish and maintain libraries and reading rooms
and to organise seminars, group discussions and conferences and raise
charities, fund for the purpose of giving charities, etc. The objects of the Sabha
consist of both religious and secular, its main object was to construct a
temple for the exclusive worship by its members. The land where the institution
in question is situated, was donated by one P.S. Srinivasan of St. Thomas
Mount. Its total extent is 1-3/4 grounds. The said P.S. Srinivasan is also an
active member of the Sabha. The members of the Sabha collected nearly Rs.2 lakhs
and constructed the institution in question. The Sabha has also received a sum
of Rs.25,000/- from the appellants as Government grant. The construction was
commenced in the year 1968 and completed in the year 1972. Kumbabishegam was
performed during 1972 from and out of the collection made amongst the members
of the Sabha. The institution in question has no property of its own. The
day-to-day affairs of the institution are being looked after by the Secretary
of the Sabha, who is being elected by its members from time to time. The
members of the Sabha used to donate liberally for the maintenance of the
institution. The institution has not received any contribution from outsiders
either for its construction or for its day-to-day maintenance. It is the
personal property of the Sabha consisting of over 120 members.

Since
the institution is the personal property of the Sabha, the Sabha has every
right to manage and maintain the affairs of the institution as its founder-cum-
hereditary trustee. The Sabha is represented by its Secretary. A petition was
filed under Section 63(b) of the Act before the 2nd appellant for a declaration
that the respondent is the hereditary trustee of the institution. That
application was dismissed by the 2nd appellant, in O.A. No.69 of 1977. The
evidence let in and the materials placed before the 2nd appellant have been analysed
and considered elaborately to arrive at the finding that the temple has been
constructed and is maintained thereafter also from funds mobilised from public
and, therefore, it is meant for Hindu worshipping public as well. As against
such dismissal, the respondent filed A.P. No. 174 of 1978 before the 1st
appellant under Section 69(1) of the Act, which was also dismissed by the 1st
appellant. The reasonings contained in those orders which are adopted by the
appellants for coming to the conclusion that the respondent cannot be the
hereditary trustee are said to be baseless. The Secretary of the Sabha elected
periodically, it is asserted, is entitled to hold the office of trusteeship in
respect of the temple in question. The trusteeship accordingly is claimed to be
only a hereditary one. Hence the suit.

The
suit was resisted by the appellants as defendants. According to them, the suit
temple is a public temple constructed out of public collections including from
the members of the respondent Sabha who are members of the public. The
institution is for the purpose of Hindu public at large. It is not relevant to
consider the objects of the Sabha. The suit temple is not for the exclusive
worship of the members of the respondent only. It is a temple as defined in
Section 6(20) of the Act. In any event, the suit temple has been dedicated to
public for the benefit of the public. The public used this temple as of right.
The site has also been taken on lease. Government grant of Rs.25,000/- was also
sanctioned for the construction of the temple. All expenses for the
construction of the temple and for Kumbabishegam and the day-to-day expenses
thereafter are met out of public contributions as well as receipts from Hundial
installed in the temple.

According
to the appellants, the allegation of the respondent that the temple does not
own any property is not correct. Public at large, other than the members of the
respondent Sabha, have contributed liberally for the construction and for
day-to-day expenses after the Kumbahishegam. It is not the personal property of
the members of the Sabha. The respondent has no right to be declared as the
hereditary trustee. There is a Hundial in the suit temple and the public
contributes liberally in it. The petition filed by the respondent under Section
63(b) of the Act has been duly considered by the 2nd appellant and was rightly
dismissed by him, which was confirmed on appeal by the 1st appellant. The reasonings
in both the orders are not liable to be set aside. The respondent Sabha was
never the hereditary trustee of the temple in question and it cannot hold the
hereditary trusteeship. The temple is a public temple and not owned exclusively
by the respondent. The Secretary of the respondent Sabha has no right to be
appointed as its hereditary trustee and the office of trusteeship cannot be
claimed to be an hereditary one.

There
is no cause of action to file the suit and the cause of action claimed is
false. There is a provision in the bye-laws of the respondent Sabha that they
can wind up the Sabha, which clause in the bye-laws will clearly show that the
trusteeship is not at all hereditary. "Hereditary trustee" has been
defined under Section 6(11) of the Act as trustee of the religious institution,
succession to whose office devolves by hereditary right or is regulated by
usage or is specifically provided for by the founder so long as such scheme of
succession is in force. None of the requirements of this provision is satisfied
in the present case and hence the suit was liable to be dismissed with costs.

The
Trial Court framed the following issues:

"1.
Whether the order of the Ist defendant is liable to be set aside?

2. To
what relief?"

It
dismissed the suit observing that taking into consideration the efforts taken
by the members of the Sabha in constructing the temple by contributing and also
by collecting donations from the public at least one of the members of the
plaintiff-Sabha can be appointed as trustee of the said temple. It is for the
defendants to decide as to which one or more of the members of the Sabha can be
appointed as trustee of the said temple.

Aggrieved
by the judgment and decree of the trial Court, plaintiff (respondent No. 1
herein) preferred an appeal before the High Court and learned Single Judge
dismissed the appeal holding that though the institution was founded by the
appellant-Sabha which is a body of persons, it was from collections and
contributions from public also and that the same is meant for all Hindu
worshipping public, and that there was no acceptable ground for declaring it as
hereditary trustee. The Division Bench of the High Court by the impugned
judgment held in view of the admitted position that Sabha was founder of the
Temple, the only other question which needed to be answered was whether a body
of persons/society or office bearers of the Sabha can be recognised as
hereditary trustee or a trustee of the temple. The aforesaid question was
answered in the affirmative with reference to the fact that the entire
administration of the temple vis-`-vis of the Sabha which consists of office
bearers and members of the Sabha/society alone are entitled to administer the
temple and properties which are also vested with them either jointly as
trustees or co-trustees. Setting aside the judgment of the present appellant
No.2 as confirmed of the present appellant No.1, it was declared that the
respondent-plaintiff was entitled to hold office of trusteeship as its
hereditary trustee.

In
support of the appeal, Mr. K. Ramamoorthy, learned senior counsel submitted
that the principles governing the appointment of hereditary trustee were not
kept in view. Office of the hereditary trustee is in the nature of property and
where by efflux of time vacancy arose there can be no succession and that the
principle of heredity will not arise. The common feature in hereditary
trusteeship is succession by hereditary right or where the succession is
regulated by usage or is specifically provided for by the founder, as long as such
provision of scheme is in force. Undisputed position is that members of the
public also contributed for construction of the temple besides Government grant
and there being no details as to how much was contributed by the founder and
how much by the public it was not permissible to hold that there was scope for
the Sabha being the hereditary trustee. The finding recorded that money was
collected for construction of the temple and that it was a public temple was
not disturbed.

Whether
a corporate body or a group of persons can be appointed as hereditary trustee
is really of no consequence in the factual background of the present case, and
that, therefore, the Division Bench was not right in allowing the claim of the
respondent, as prayed for.

Clause
(11) of Section 6 of the Act defining "hereditary trustee" has three
limbs. Sections 41 and 42 of the Societies Act have great relevance on the
question of hereditary trusteeship. Bye-law (23) also throws considerable light
on the controversy. There is no question of any usage being pressed into
service, when the temple is constructed first. The society itself was formed in
1967 and therefore the question of any long usage being in existence does not
arise.

In
response, learned counsel for the respondent submitted that merely because
contributions had been received from the public, that does not make
contributors co-founders. Unnecessary stress was laid by learned Single Judge
on the consequences of winding up of the Sabha. The founder is known as a Sabha
and the management is with the Sabha's members themselves. There is no dispute
about this aspect. There was also no hindrance or interference by the public in
the management and administration of the temple. The length of management
commensurate from the time of its construction is itself suggestive of long
usage.

Trusteeship
is linked with management and there being no legal bar on a body becoming a
trustee the Division Bench was correct in holding that the Sabha was a
hereditary trustee. If one looks at Clause (22) of Section 6, the Sabha as a
whole is a trustee and with reference to Clause (11) of Section 6 it can be
said that the Sabha is a hereditary trustee. The founders automatically were
vested with trusteeship. It is nobody's case that it was an elected body, and
therefore, the contributors and the Government cannot be said to have status as
its founders. Sabha is not a corporate body but is a compendium of names. It is
not the case of the respondent that any particular member was a trustee. It was
the compendium which was the trustee acting through its Secretary and,
therefore, rightly the Division Bench held that present respondent No.1 was a
hereditary trustee.

Section
6 of the Act which is the pivotal provision so far as relevant reads as
follows:

"Section
6(11)- 'hereditary trustee' means the trustee of a religious institution, the
succession to whose office devolves by hereditary right or is regulated by
usage or is specifically provided for by the founder, so long as such scheme of
succession is in force.

6(20)-'temple'
means a place by whatever designation known used as a place of public religious
worship, and dedicated to, or for the benefit of, or used as of right by, the
Hindu community or of any section thereof, as a place of public religious
worship.

6(22)
'Trustee' means any person or body by whatever designation known in whom or in
which the administration of a religious institution is vested, and includes any
person or body who or which is liable as if such person or body were a
trustee." On consideration of the rival submissions, we feel that the
approach of the Division Bench of the High Court was on erroneous premises and
the conclusions appear to have been arrived at overlooking certain vital and
basic underlying factors, the character of the temple as well as operation and
impact of the provisions of the Act on the temple and the claims made in
relation thereto. The basic question that arose was not whether a body of
persons or society or office bearers of a Sabha can be recognised as hereditary
trustee or a trustee of the temple. What was needed to be adjudicated was
whether on the facts as also the prevailing and governing position of law,
particularly the Act in question, the claim for 'hereditary trustee' was
established or could be sustained.

A bare
reading of definition of "hereditary trustee" brings into focus three
important aspects; i.e. first, a trustee of a religious institution the
succession to which is devolved by hereditary right; the second category is
that succession can be regulated by usage and the third category is where
succession relating to the office of trustee is specifically provided for by
the founder and that too so long as the scheme of such succession is in force.
In contrast to the criteria engrafted in Section 6(22), the definition in
Section 6(11) lays special and specific emphasis on the succession to the
office of trustee of a religious institution devolving by anyone of the three
methods or manner envisaged therein. So far as the case on hand is concerned,
the statutory authorities specially constituted under the Act have held the
temple to be for all the worshipping Hindu public and not confined to the
members of the Sabha only having regard to the manner in which funds were
collected and the manner in which the public invitations and declarations have
been made and day-to-day administration of the temple is being carried on from
inception. Though there has been an application for declaration of the office
of trustee of the religious institution to be an hereditary one, no application
under Section 63(a) for a declaration as to whether the temple in question is a
religious institution used as a place of public religious worship and dedicated
to or for the benefit of or used as of right by the Hindu community or section
thereof was filed. Even after, specific findings by the statutory authorities
as to the character of the institution conspicuous omission in this regard
disentitled the respondent-Sabha to incidentally or vaguely project that it is
for the members of the Sabha only. Once it is a religious institution within
the meaning of the Act, the provisions of the Act have full force and effect
and the claim of the nature, unless substantiated as provided for under the
statute cannot be countenanced on certain assertions made which was besides
such statutory provisions. This Court highlighted this aspect of the matter in
the decision reported in D. Srinivasan v. Commissioner and Ors. (2000 (3) SCC
548).

The
Act applies to all Hindu Public Religious Institutions and Endowments.
'Religious Institution', as defined at the relevant point of time meant a math,
temple or specific endowment and 'temple' meant a place by whatever designation
known, used as a place of public religious worship and dedicated to or for the
benefit of or used as of right by the Hindu community or of any section
thereof, as a place of public religious worship.

'Trustee'
meant any person or body by whatever designation known in whom or in which the
administration of a religious institution is vested and includes any person or
body who or which is liable as if such person or body were a trustee. In
respect of a religious institution, which has no hereditary trustee, the
competent authority concerned depending upon the class of temple has been
empowered under the provisions of the Act to constitute also a Board of
Trustees. 'Hereditary trustee' has been defined to mean, the trustee of a
religious institution, the succession to whose office devolves by hereditary
right or is regulated by usage or is specifically provided for by the founder,
so long such schemes of succession is in force. 'Non-hereditary trustee' has
also been defined to mean a trustee who is not a hereditary trustee.
Consequently, the office of trustee, hereditary or non-hereditary though may
have an incumbent who occupies or holds the office of trusteeship at a
particular point of time or for a period of duration it is only the manner or
method by which the incumbent concerned comes to occupy it that it is decisive
of the nature and character of it as to whether it is hereditary or
non-hereditary.

Prior
to the 1959 Act, The Madras Hindu Religious and Charitable Endowments Act 1951,
occupied the field from 1.10.1951 and came to be replaced by the 1959 Act.

The
scope of meaning of the terminology 'hereditary trustee' under the 1951 Act
came up for consideration of the Madras High Court as well as this Court. In
ILR 1957 Mad. 1084=AIR 1957 Mad. 758 State of Madras v. Ramakrishna Naidu, a
Division Bench of the Madras High Court had an occasion to exhaustively deal
with the position in the context of an ancient temple known as Sri Parthasarathy
Swami Temple, in Triplicame in Madras city. The administration of the temple at
the relevant point of time was in accordance with a scheme framed by the Madras
High Court, which inter alia provided that the management and affairs of the
temple shall be carried on by a body of dharmakartas under the supervision and
control of a Board of Supervision. The dharmakartas were to be three in number,
of whom one shall be a Brahmin, one an Arya Vysia (Komatti) and one a non-brahmin
not Arya Vysia and the dharmakartas shall hold office for a period of five
years from the date of his appointment, the retiring dharmakartas being also
eligible for re-appointment, otherwise if so qualified.

The
said dharmakartas shall be elected by person whose names are included on the
date of election in the list of voters maintained at the temple, in terms of
the qualifications prescribed for being so enrolled as voters and elaborate
rules for the conduct of elections have been also laid down in the scheme. When
the period of office of one of the dharmakartas by name Rao Bahadur v. Ranganathan
Chetty expired by efflux of time after the commencement of the 1951 Act, though
the vacancy had to be under the scheme, filled up by election, the
Commissioner, Hindu Religious And Charitable Endowments, passed an order in
exercise of his powers under Section 39(i) of the 1951 Act, appointing one C. Subramaniam
Chetty as Trustee in the vacancy caused by the expiry of the term of trustee of
Sri V. Ranganathan Chetty. This order came to be challenged in the High Court
and a learned Single Judge sustained the claim of challenge on the ground that
Sections 39 and 42 had no application, as the trustees of the temple were
hereditary trustees.

Those
who challenged the appointment were not either the outgoing trustee- V. Ranaganathan
Chetty or his heirs or successors but two thengalai worshippers interested in
the said temple. If the trustees of the temple are hereditary trustees,
Sections 39 and 42 had no application and it is in that context the question
that was adverted to for consideration was whether it is an institution, which
has a hereditary trustee or hereditary trustees. After adverting to the
definition of 'hereditary trustee' in Section 6(9) of the 1951 Act, which
defined the same to mean the trustee of a religious institution, succession to
whose office devolves by hereditary right or is regulated by usage or is
specifically provided for by the founder, so long as such scheme of succession
is in force. The Division Bench specifically noticed the fact that the claim of
those who challenged the order of Commissioner was on the ground that the
office of dharmakartas was a 'hereditary' one and it was not on the basis that
their office devolved by succession or because succession to their office has
been specifically provided for by the founder, but that the succession to the
office "is regulated by usage', which found favour of acceptance with the
learned Single Judge. The stand taken for the State before the Division Bench
was that, the phrase 'regulated by usage' must be read with the expression,
"succession to whose office" and when so read that part of the
definition would only apply where the ordinary rules of succession under the
Hindu Law are modified by usage and succession has to be determined in
accordance with the modified rules. It was observed that though several schemes
framed took notice of the usage and embodied it in the scheme framed with such
modifications as the court deemed fit, it cannot be said that the succession
continued to be governed by usage when as a matter of fact it was governed by
the provisions of the scheme and not by usage any longer.

Proceeding
further, the Division Bench construed the scope and purport of the definition
'hereditary trustee', placing strong reliance upon the decision of this Court
reported in 1951 SCR 1125 (Angurbala Mullick v. Debabrata Mullick) and AIR 1954
SC 606 (Sital Das v. Sant Ram), and held therein as follows:

"In
the case of mutts whose heads are often celibates and sometimes sanyasins,
special rules of succession obtain by custom and usage. In Sital Das vs Sant
Ram, the law is taken as well-settled that succession to mahantship of a mutt
or religious institution is regulated by custom or usage of the particular
institution except where the rule of succession is laid down by the founder
himself who created the endowment. In that case the custom in matters of
succession to mahantship was that the assembly of bairagis and worshippers of
the temple appointed the successor; but the appointment had to be made from the
disciples of the deceased mahant if he left any, and failing disciples, any one
of his spiritual kindred. Such a succession was described as not hereditary in
the sense that on the death of an existing mahant, his chela succeeds to the
office as a matter of course, because the successor acquires a right only by
appointment and the authority to appoint is vested in the assembly of the bairagis
and the worshippers. In Sri Mahant Paramananda Das Goswami vs Radhakrishna Das
a Division Bench took the view that where succession to the mahantship is by
nomination by the holder in office, it is not a hereditary succession.

Venkatasubba
Rao, J., as said:

"If
the successor owes his title to nomination or appointment, that is, his
succession depends on the volition of the last incumbent and does not rest upon
independent title, I am inclined to the view that the office cannot be said to
be hereditary." Krishnan, J., the other learned Judge, came to the same
conclusion on the following reasoning:

"Where
succession is by nomination by the holder in office of his successor it seems
to me impossible to contend that it is a hereditary succession.

Hereditary
succession is succession by the heir to the deceased under the law, the office
must be transmitted to the successor according to some definite rules of
descent which by their own force designate the person to succeed.

There
need be no blood relationship between the deceased and his successor but the
right of the latter should not depend upon the choice of any individual".

The
present definition in Section 6, clause (9), would, however, comprise even such
cases.

It
appears to us to be singularly inappropriate to say that there is a succession
of A's office to another when on the efflux of the period for which A was
appointed there is a vacancy and B is elected to that vacancy." In AIR
1971 SC 2363 = 1970(1) SCC 4 (Sambudamurthi Mudaliar vs. The State of Madras
and another), this Court had an occasion to construe Section 6 (9) and the
scope of the terminology 'hereditary trustee' and held as follows:

"3.
The question to be considered in this appeal is whether the appellant is a hereditary
trustee within the meaning of the section. The definition includes the three
types of cases:

(1) succession
to the office of trusteeship devolving by hereditary right;

(2) succession
to such office being regulated by usage; and

(3) succession
being specifically provided for by the founder on condition that the scheme of
such succession is still in force.

It is
not the case of the appellant that the trustees of the temple of the Kumaran
Koil are hereditary trustees because their office devolves by hereditary right
or because succession to that office is specifically provided for by the
founder. The contention on behalf of the appellant is that the succession is
"regulated by usage". It was said that according to the usage of the
temple the trustees were elected for a period of one year each at a meeting of
the members of the Sengunatha Mudaliar Community and so the appellant must be
held to be a trustee within the meaning of Section 6(9) of the Act 19 of 1951.
In our opinion, there is no warrant for this argument. The phrase
"regulated by usage" in Section 6 (9) of the Act must be construed
along with the phrase "succession to this office" and when so
construed that part of the definition would only apply where the ordinary rules
of succession under the Hindu Law are modified by usage and succession has to
be determined in accordance with the modified rules. The word
"succession" in relation to property and rights and interests in
property generally implies "Passing of an interest from one person to another"
(vide in Re. Hindu Women's Right to Property Act, 1937, (1941 FCR 12) = (AIR
1941 FC 72). It is now well established that the office of a hereditary trustee
is in the nature of property. This is so whether the trustee has a beneficial
interest of some sort or not. (see Ganesh Chander Dhur v. Lal Behari, 63 Ind App 448 = (AIR 1936 PC 318) and Bhabatatini v. Ashalata,
70 Ind App 57 = (AIR 1943 PC 89).
Ordinarily a shebaitship or the office of dharamakarta is vested in the heirs
of the founder unless the founder has laid down a special scheme of succession
or except when usage or custom to the contrary is proved to exist. Mukherjea
J., in Angurbala Mullick v Debabrata Mullick, 1951 SCR 1125 = (AIR 1951 SC 293)
delivering the judgment of this Court observed:

"Unless,
therefore the founder has disposed of the shebaitship in any particular manner and
this right of disposition is inherent in the founder or except when usage or
custom of a different nature is proved to exist, shebaitship like any other species
of heritable property follows the line of inheritance from the founder."
In the case of mutts, whose heads are often celibates and sometimes sanyasins,
special rules of succession obtain by custom and usage. In Sital Das v. Sant
Ram, AIR 1954 SC 606 the law was taken as well settled that succession to mahantship
of a mutt or religious institution is regulated by custom or usage of the
particular institution except where the rule of succession is laid down by the
founder himself who created the endowment.

In
that case the custom in matters of succession to mahantship was that the
assembly of bairagis and worshippers of the temple appointed the successor; but
the appointment had to be made from the disciples of the deceased mahant if he
left any, and failing disciples, any one of his spiritual kindred.

Such a
succession was described as not hereditary in the sense that on the death of an
existing mahant, his chela does not succeed to the office as a matter of
course, because the successor acquires a right only by appointment and the
authority to appoint is vested in the assembly of the bairagis and the
worshippers. In Sri Mahant Paramananda Das Goswami v. Radha Krishna Das, 51 MLJ
258 = (AIR 1926 Mad 1012), the Madras High Court took the view that where
succession to the Mahantship is by nomination by the holder in office, it is
not a hereditary succession. In that case Venkatasubba Rao, J., said:

"If
the successor owes his title to nomination or appointment, that is, his
succession depends on the volition of the last incumbent and does not rest upon
independent title, I am inclined to the view that the office cannot be said to
be hereditary." Krishnan, J., stated as follows:

"Where
succession is by nomination by the holder in office of his successor it seems
to be impossible to contend that it is a hereditary succession.

Hereditary
succession is succession by the heir to the deceased under the law, the office
must be transmitted to the successor according to some definite rules of
descent which by their own force designate the person to succeed.

There
need be no blood relationship between the deceased and his successor but the
right of the latter should not depend upon the choice of any individual."
It is true that the artificial definition of hereditary trustee in Section 6
(9) of the Act would include even such cases.

4. But
the election to the office of trustee in the present case is for a fixed period
of one year and not for life. It is, therefore, difficult to hold that the
office of the appellant is hereditary within the meaning of Section 6 (9) of
the Act. It is not possible to say that there is a succession of A's office to
another when on the efflux of the period for which A was appointed, there is a
vacancy and B is elected to that vacancy. It is quite possible that for that
vacancy A himself might be re-elected because a retiring trustee is eligible
for re-election. The possibility of A being the successor of A himself is not
merely an anomaly, it is an impossible legal position. No man can succeed to
his own office. In Black's Law Dictionary the word 'succession' is defined as
follows:

"The
devolution of title to property under the law of descent and distribution.

The right
by which one set of men may, by succeeding another set, acquire a property in
all the goods, movables, and other chattels of a corporation.

The
fact of the transmission of the rights, estates, obligations, and charges of a
deceased person to his heir or heirs." The view we have taken is borne out
by the reasoning of the Madras High Court in State of Madras v. Ramakrishna,
ILR (1957) Mad 1084 = (AIR 1957 Mad 758)." Thus, it could be seen that
even in S. Mudaliar's case (supra), the challenge was by a person who was
appointed only for one year and not for life and that his claim before the
Court, which fell for consideration is not that he himself was a hereditary
trustee but that the trusteeship of the temple was 'hereditary' in nature. This
Court also approved the ratio of the decision of the Division Bench of the
Madras High Court in Ramakrishna Naidu's case (supra). Consequently, the
distinction sought to be made of the decision of this Court by a Division Bench
of the Madras High Court which decided the case in 1975(2) M.L.J. 178 - A.N. Ramaswamy
Iyer and Ors. v. The Commissioner H.R.& C.E. and another, particularly para
11 is without any substance or really any difference to so distinguish. The
said decision cannot be considered to lay down a correct proposition of law, in
the teeth of the specific declaration of the legal position made by this Court
in S. Mudaliar's case (supra). As long as there is no provision by any founder
for devolution of the office of trusteeship by succession hereditarily, in or
by anyone of the mode or method envisaged it is futile to claim that the temple
has hereditary trustee or that the management or administration of the affairs
of the temple is carried on by a hereditary trustee or that the respondent is
entitled for a declaration that it is the hereditary trustee of the temple in
question. In this case no such provision has shown or found to exist, and as a
matter of fact the learned Single Judge in the High Court found such provision
to be conspicuously absent.

In Dr.
Srinivasan's case (supra), this court adverted to the definition of 'hereditary
trustee' under Section 9 (6) of the Madras Hindu Religious Endowments Act, 1926
(Act 2 of 1927) as also Section 6 (9) of the 1951 Act and Section 6 (11) of the
1959 Act and taking note of the change brought about by the 1951 and 1959 Acts
respectively, it was held that, after the commencement of the 1951 Act itself
the definition of 'hereditary trustee' contained in Section 6 (9) therein did
not recognize a person who was nominated by other trustees as hereditary
trustees and that the same position prevails under Section 6 (11) of the 1959
Act, which also does not describe a person nominated by the existing board to
be called a hereditary trustee. It is useful to refer to the observation made
therein, as hereunder:

"24.
We, therefore, hold that if any trustee has been nominated subsequent to the
commencement of the 1951 Act by the Board of Trustees who were in office prior
to the 1951 Act or by their nominees then such persons could not be called
"hereditary trustees" within the meaning of sub-section (6) of
Section 9 of the 1951 Act. Similarly, if the persons who were themselves not
hereditary trustees after the 1951 Act, either by themselves or along with
other hereditary trustees after 1951, nominated trustees, then such trustees
would not be hereditary trustees. The position is no different after the 1959
Act.

26.
This does not, however, mean that the right conferred on the Board of Trustees,
whenever a vacancy occurs in the five places created by Venkatarangaiah, is
done away with altogether by the 1951 Act or by the post-1951 Acts. It will be
open to the nominated five trustees in office, from time to time to nominate
fresh trustees whenever there is any vacancy in these five offices of trustees.

Such
persons can be trustees but cannot be called "hereditary trustees".
They will have to be described as "non-hereditary trustees".

What
their rights are will necessarily have to be governed by the provisions of the
statute.

We
need not go into the question as to their rights. Suffice to say that they are
not "hereditary trustees"." The authority to nominate or appoint
or specify periodically for a specified period even by a body which had
authority to do so would not make such office a hereditary one so as to call
such trustees 'hereditary trustees' as defined under the 1951 or 1959 Acts. It
is the definite rules of succession and devolution by any one of the three
modes of succession envisaged in Section 6(11) that could alone enable a claim
of hereditary trustee to be legitimately made.

Having
regard to the conclusions arrived at supra, the submissions made on the basis
of the finding recorded that the Sabha was the founder of the temple in
question or that as founder it had every right to provide for the
administration of the affairs and management of the temple and its property, if
any, and for future management as well, pales into insignificance and really
does not call for our decision to determine the question as to whether the Sabha
could get itself declared as `Hereditary Trustee' under the provisions of the
Act. Similarly, the question as to whether a body could be a Trustee or
constitute Board of Trustees also is beside the point. Even, as a body whether
it could claim to be a trustee or not, so far as in the case on hand is
concerned, it cannot, as held by us, claim to be hereditary trustee.

No
doubt, normally every donor contributing at the time of foundation of a Trust
cannot claim to become a founder of the Trust, except in cases where all the
contributors of the Trust Fund become the founders of the Trust itself inasmuch
as a decision on the question as to whether a person can be a joint founder,
cannot be made to rest merely upon the factum of contribution alone unless the
surrounding and attendant circumstances proved in the case and subsequent
conduct of parties warrant such a finding. All these issues also seem to be
beside the real issue as to the hereditary nature of the office claimed which
by no means could be countenanced in law, in favour of the respondent-Sabha.

The
analysis undertaken by learned Single Judge seems to be correct. As noted
above, Sabha itself came into existence a few years before the declaration was
sought for by filing a suit by the present respondent.

The
concept of long continuance and passage of time is inbuilt in the expression
'usage' and the factual position also in the present case does not enable the Sabha
to establish application of the usage concept.

That
being so, the judgment of Division Bench of the High Court is set aside and
that of the learned Single Judge is restored. The appeal is allowed with no
order as to costs.